Police investigations and Employment Tribunal Proceedings

31st August 2010 Sometimes an employer may dismiss an employee for conduct that may amount to a criminal offence, or the details of a case may concern allegations of criminal behaviour by an employee. In such situations enquiries may be made by the Police into the same issues that have prompted the employer to take disciplinary action against the employee. 

This situation can lead to practical problems over how and when the employer can take disciplinary action. A recent case in the Employment Appeals Tribunal shows that the same issue can cause complications in the conduct of the actual proceedings in the Employment Tribunal itself.

In the case of Gloucestershire Constabulary v Peters the Employment Appeals Tribunal has ruled that an Employment Tribunal should grant a stay- a delay- in the Tribunal case where the issues in the case overlap with a criminal investigation into the same issues. In this case the employee had been involved in a car accident in 2003, and had taken lengthy periods of sickness absence, and made claims for sick pay in 2003, 2005, 2007/08, and 2009/10. The employee claimed that injuries in her neck, shoulder, back and wrists, sustained in the accident constituted to a disability under the Disability Discrimination Act 1995. She claimed that her employer failed to make reasonable adjustments to accommodate her disability.

Suspicions had grown that her claims for sick pay were fraudulent, on the basis that she was not as ill as she claimed. Police investigations commenced in 2009 into allegations of fraud by the employee in claiming sick pay. The Employment Tribunal granted two short stays in the Tribunal case, however, an indefinite stay was refused. The Employment Tribunal held that the delay had already been sufficient, and that further delay would be prejudicial to the claimant. Her employer appealed against that decision. The Employment Appeal Tribunal ruled that there was significant overlap between the issues that were under investigation by the Police and the claim in the Tribunal, and that the Employment Tribunal had not properly taken that into account in deciding to allow the case to proceed. The Employment Appeal Tribunal ruled that it was proper for the Crown Prosecution not to be forced to submit all of its evidence prematurely- as being forced to do so could prejudice any further criminal investigation. The Appeal Tribunal also noted that the employer was unable to defend the claim fully until all the evidence was collected by the Crown Prosecution Service. As a consequence the Employment Appeals tribunal granted a further delay in the Tribunal case, but only for a set period. This was to allow the Police time to "get their tackle in order."

This case indicates that it will usually be appropriate for cases to be postponed pending the conclusion of a Police investigation where the allegations against the employee include criminal conduct. It is however important for employers to note that they are expected to act promptly in carrying out a disciplinary action where criminal conduct is alleged. Employers are NOT obliged to delay the internal process for the completion of a Police investigation. They should act on the basis of the information they have available. There is in any event a lower burden of proof for an employer in deciding to dismiss an employee than on a prosecutor in a criminal court. The case does indicate that if there is an overlap of proceedings in the Employment Tribunal and the criminal courts, covering the same issues, then the Employment Tribunal case should be delayed in order to let the Police complete their investigation.

If you need any further help or advice in relation to matters covered in this article please do not hesitate to contact us.